COMMENTARY
HMOs Stalk Patients' Rights
The industry must not be allowed to wiggle its way out of
accountability
to the ailing.

By
JAMIE COURT, Jamie Court is executive director of the Santa
Monica-based
Foundation for Taxpayer and
Consumer Rights. E-mail: Jamie@consumerwatchdog.org.

California
HMOs are slyly attacking the new patients' rights laws touted
by Gov. Gray Davis as the toughest in the nation.
The industry can't be allowed to undermine the two pillars of HMO
patients'
rights it has targeted: effective state regulation
and legal accountability.

In
the latest assault, Kaiser Permanente convinced an administrative
law judge to rule that the state's HMO regulator could
not intervene in most patients' quality of care problems.

The
dangerous reasoning grew out of Kaiser's aggressive legal opposition
to a $1.1-million fine levied against it after three
patients with ruptured abdominal aortal aneurysms died after their
access to treatment was blocked by Kaiser's unresponsive
telephone call system or its over-capacity emergency rooms. Newly
uncovered
internal documents have proven the systemic
nature of Kaiser's problems, although these were not introduced as
evidence in the case. In a program Kaiser claims to have
ended, the company's telephone clerks who handled patient calls were
paid financial bonuses to limit doctor appointments,
to not transfer calls to nurses and to hang up quickly. For its part,
Kaiser has contended that its patients' quality of care is its
doctors' problem, not the HMO's.

The
state medical board, which regulates doctors, says it has no authority
to address systemic quality of care and access to
care problems at HMOs or in doctor-run medical groups; the board leaves
those problems to the HMO regulator, the
Department of Managed Health Care.

Kaiser
now is seeking to turn this crack in the law--the lack of regulation
of doctor-run medical groups--into a gaping loophole.

For
the largest HMO in the nation to hide behind its doctors, who work
only for Kaiser, is like an auto manufacturer claiming it
is not responsible for the design of its exploding gas tanks because
its workers built them.

Fortunately,
the Department of Managed Health Care rejected the administrative
law judge's decision, saying, "California's reforms
are a beacon to the nation and we will not turn back the clock."
Department
Director Daniel Zingale also urged Kaiser to reconsider
its "legal strategy of arguing that limitations on patient protection
laws render this case unenforceable."

Now,
Kaiser can decide whether to pursue its case in state Superior
Court, where a similar ruling could undermine the authority of
the agency created in 2000 specifically to enforce the California HMO
reform package.

Kaiser
and other HMOs supported much of this reform legislation to quell
a public backlash at the time; now they must begin to live
within those laws rather than continually try to obstruct them.

Ironically,
Kaiser's litigiousness over the company's rights contrasts
starkly with HMOs' evisceration of the legal rights extended to
their patients in 1999. The mandatory binding arbitration agreements
HMOs have forced their patients into as a condition of enrolling
have become a means of disemboweling the HMOs' legal accountability
to the individual.

Until
the state's "right to sue" law, most patients could not recover
damages when HMOs harmed them. Effective in 2001, the liability
law gave all patients that right when their HMO interfered with the
quality of their care but did not specify in what forum. Currently,
there is no public record of any patient using the law. Forced
arbitration
has prevented cases from coming before judges, which keeps
case law beneficial to patients from developing.

Without
such precedents to determine the scope of HMOs' liability, the
industry is evading accountability on yet another front.

Legislators
must focus their attention on the efforts by HMOs to weaken
the state's patients' bill of rights--even the sneak attacks.